Staffing News Online

Submitted by Avionte

We’ve heard a lot about mass texting in recruiting over the years, but the industry can’t decide whether to love this powerful tool for candidate engagement or avoid it all together. We wanted to end the debate once and for all, so we reached out to our partners at Text-Em-All to get their thoughts on the three most-talked-about issues surrounding automated messaging.

Is mass messaging actually effective?

The short answer is HECK YES. When it comes to candidate and employee engagement, it’s all about timing. You need to get the right message to the right person at the right time. Mass texting gives you the power to do that, at scale, with minimal effort from your team.

The big “but” here, is that sending high-volume messages to your talent pool is only going to be effective if you do it the right way. According to Jonathan Melton, Account Manager for Partnerships and Integrations at Text-Em-All, your success depends on how the message is crafted, and who that message is sent to.

“If you are sending a mass message looking for forklift drivers, make sure your candidate list is filled with those who actually make sense for the role. Nothing gets you candidates opting out of messages faster than sending them jobs that don’t line up with their skills or messaging associates who are already on assignment. Likewise, the content of the message is key. Our Staffing Playbook goes through all the best tips for ensuring your messages have the best chance of getting high engagement rates.”

In short: You need to keep your audience in mind and build a message that targets them directly if you want to create an effective messaging strategy or campaign.

Is mass texting legal?

Once you’ve determined that texting your talent pool is the best way to deliver your message quickly and effectively, you may start worrying about the legal implications of sending mass messages. Don’t. Mass messaging is legal in all 50 states as long as you obtain consent.

According to Jonathan, consent is the first, and most important step in staying compliant because “any automated messaging service that is used for business messages can only send messages to those who are expecting the communication.”

So, if you’re purchasing lists from a third party for your messaging campaign, now’s the time to see if you can get a refund. These contacts have not provided your business with the appropriate consent and can pursue legal action if provoked.

Obtaining consent from your audience is simple. Just ask. You can send them an email, give them a call, or have them fill out a form. As long as you can provide documentation that your candidate or employee provided the green light for your team to text them, then you’re in the clear.

To sum it up: If a candidate gives you their phone number, you’re good to go. If you’re getting that phone number from anyone but the candidate, you’re going to be in a world of hurt.

Another thing to keep in mind is going toll-free. This isn’t actually required to be compliant in today’s environment, but it’s a good thing to consider as you build your strategy. Phone carriers are becoming stricter with local number texting in an effort to protect consumers from scams as well as spam, and it’s only a matter of time before legislation catches up.

Now, moving to an 800 number may sound counterintuitive if you want to create that warm, 1:1 contact, but according to Text-Em-All, there’s a number of big benefits that come with making the switch.

“With a toll-free text number, the carriers put you on the high-speed routes with minimal throttling and text blocking.” This means you don’t need to wrestle with “batch texting” like you’d need to if you use local numbers.

Also, with a local phone number, you can’t see if the text actually made it to the contact’s handset or not. With toll-free texting, however, “…you will know exactly which phone numbers received the text, which didn’t, and if not, why they didn’t.”

In short: Going toll-free isn’t required to stay compliant right now, but it puts your firm in a better position to be compliant in the future. It also helps you deliver the right message to the right person quickly and collect data on how they engage with that message.

What other things should I consider before hitting send?

Building the best message and obtaining a consenting audience isn’t always enough. If you want to have continued success…

• Do check to see what percentage of your database is landline phone numbers vs. mobile phone numbers. Landlines can’t receive text messages, so there’s no point in wasting valuable time and money trying. So send a voice message instead.
• Do provide a clear introduction when texting candidates and employees. They’re less likely to ignore you, or block you, if they know who you are.
• Do be direct and informative in your messages.
• Don’t try to use a local line for high volume texting. You will be paying to send texts that the carriers probably block or throttle, meaning you aren’t filling your open orders as quickly.
• Don’t send something out that the carriers could mistake as spam. Examples include non-branded shortened URLs, exclamation marks, $$$$, and all caps.

To sum it up: Be thoughtful in how you approach your messages, don’t be spammy, and utilize a combination feature that will automatically send a text message to cell phones and a voice call to landlines.

About Text-Em-All

We aim to keep people informed when it matters most. We deliver personalized, informational, emergency mass text messages and phone calls fast—whether they’re going to five people or 50,000.

About Avionté

Avionté Staffing Software delivers a robust platform for clerical, light industrial, IT, and professional staffing firms that includes powerful ATS, payroll and billing solutions, and the first paycard designed specifically for the staffing industry.

Submitted by Two River Benefits Consultants, LLC

President Joe Biden signed the American Rescue Plan Act of 2021 (ARPA) into law on March 11, 2021. Along with providing financial relief for individuals, state and local governments, schools, businesses and for other purposes, the law contains the following measures of special interest to employers and their employees:

• A subsidy for COBRA premiums, funded through employer tax credits
• Extension of employer tax credits for FFCRA employee leave voluntarily provided through Sept. 30, 2021
• Expansion of employee earnings eligible for the FFCRA tax credit
• Inclusion of testing and immunization as reasons for FFCRA leave
• Extension of $300 increase in weekly unemployment benefits
• Extension of weekly unemployment benefits for workers who otherwise wouldn’t qualify for these benefits
• Expansion of subsidy for ACA premiums
• Increase in DCAP contribution limits
• Extension and expansion of the employee retention tax credit

Action Steps

Employers should review the ARPA’s provisions to identify any requirements and opportunities that apply to them. Employers are also advised to watch for official guidance on the implementation of the law.

COBRA Subsidy

The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) allows employees who would lose employer-sponsored health insurance because of job loss (or a reduction in working hours) to continue that insurance for 18 months. However, the employer can require the employee electing COBRA coverage to pay the entire cost of the premium.

The ARPA provides a 100% subsidy of COBRA premiums from April 1, 2021, through Sept. 30, 2021, for employees and their family members who lost health insurance due to the involuntary termination (or reduction in hours) of their employment. These individuals would be allowed to elect subsidized COBRA even if they had earlier declined the COBRA option, or had enrolled in COBRA and then dropped it. The subsidy would not apply to employees who voluntarily terminated their employment or who qualify for another group health plan.

The subsidy is funded by the federal government through a refundable payroll tax credit. The ARPA contains new employee notice requirements for plan administrators; the U.S. Department of Labor will issue model notices for this purpose. Employees may elect subsidized COBRA any time from April 1, 2021, through 60 days after receiving notice of the benefit.

FFCRA Leave

The Families First Coronavirus Response Act (FFCRA), passed in March 2020, provided a tax credit for employers to fund two types of paid employee leave required by the law. These leave requirements expired in December 2020. However, the tax credits were extended through March 31, 2021, for employers that chose to continue to provide FFCRA leave beyond Dec. 31, 2020.

The ARPA extends the FFCRA employer tax credit for voluntarily provided leave through Sept 30, 2021, and adds employee time off related to COVID-19 testing and immunization as permissible reasons for taking the voluntary leave. It also increases the amount of wages eligible for the family leave credit from $10,000 to $12,000 per employee, and it provides an additional 10 days of voluntary emergency paid sick leave for employees, beginning April 1, 2021.

Unemployment

The ARPA extends three pandemic-related federal unemployment programs that were otherwise scheduled to end in March or April 2021. These include:

Pandemic Unemployment Assistance, which provides weekly benefits to independent contractors, self-employed individuals and other workers who would typically not be eligible for unemployment benefits;

• Pandemic Emergency Unemployment Compensation, which provides weekly benefits to individuals who have exhausted their eligibility for all other unemployment benefits; and
• Federal Pandemic Unemployment Compensation, which provides an additional $300 weekly payment to individuals who are already receiving PUA, PEUC or regular unemployment benefits.

Under the ARPA, all of these benefits are now available through Sept. 6, 2021.

The ARPA also changes how unemployment benefits received in 2020 are taxed. Specifically, it exempts the first $10,200 from federal income tax for each spouse in households with under $150,000 in adjusted gross income.

ACA

The ARPA temporarily increases the dollar amount and expands eligibility for federal subsidies for health insurance coverage purchased through the Affordable Care Act (ACA) Exchanges. Currently, the ACA’s premium tax credits are not available to individuals with income at or above 400% of the federal poverty level. The ARPA temporarily eliminates this income cap on these subsidies for a period of two years.

The law also:

Limits the total amount a household would be required to pay for health coverage through the Exchanges to 8.5% of their household income;

• Increases the federal subsidy amounts available for lower-income individuals, eliminating premium costs completely for these individuals in some cases; and
• Includes additional federal funding intended to encourage states that did not previously expand their Medicaid programs to do so now.

These ACA changes are temporary, and will expire after a period of two years.

DCAP

For taxable years beginning after Dec. 31, 2020, and before Jan. 1, 2022, the ARPA increases the annual contribution limit for a dependent care assistance program (DCAP) from $5,000 to $10,500 (and from $2,500 to $5,250 for married individuals filing taxes separately).

Employers with DCAPs can retroactively amend their plans to incorporate this increase, if:

The amendment is adopted by the last day of the plan year in which it is effective; and

• The plan operates consistently with the terms of the amendment until it is adopted.

Employee Retention Tax Credit

The ARPA extends the employee retention credit through the end of 2021 (the credit was set to expire in June 2021). This credit was originally enacted with the Coronavirus Aid, Relief and Economic Security (CARES) Act to encourage employers to retain on their payroll employees who could not report to work because of COVID-19-related reasons.

New features of this credit include:

Some small startups that began operating after Feb. 15, 2020, will be eligible for a maximum credit of up to $50,000 per quarter even if they do not experience an eligible decline in gross receipts, or a full or partial suspension; and

• A new provision for “severely financially distressed” employers will begin in the third quarter of 2021. The provision will allow employers of any size to count all wages toward the $10,000 cap.

Submitted by Christopher Leddy, Esq., Becker LLC

On March 29, 2021, SB95 goes into effect in California. SB95 applies to all California employers who have 25 or more employees and provides for COVID-19 supplemental paid sick leave for covered employees who are unable to work or telework due to:

• The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
• The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
• The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
• The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5 of the California Labor Code, who is subject to an order or guidelines as described in the first bullet point above, or who has been advised to self-quarantine as set forth in the second bullet point above.
• The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5 of the California Labor Code, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Employees who utilize the leave for any of the foregoing reasons are considered to be covered employees under SB95.

While SB95 goes into effect on March 29, 2021, it is retroactive to qualifying leave taken on or after January 1, 2021; however, employers do not have to go back and reclassify leave taken before March 29, 2021 as COVID-19 supplemental paid sick leave, but can wait for the employee to request the same.

Covered employees are entitled to 80 hours of COVID-19 supplemental paid sick leave, if the covered employee is considered to work full time by the employer or worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave. Part-time employees are entitled to the total number of hours the covered employee is normally scheduled to work for the employer over two weeks. Variable covered employees are likewise entitled to paid leave, but the amount of leave requires a calculation depending upon how long the covered employee has worked for the employer.

This paid leave is currently capped at $511 per day and $5,110 in the aggregate. Subject to the foregoing cap, non-exempt covered employees are paid the highest of: (1) the regular rate of pay for the work week in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that work week; (2) dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; (3) the state minimum wage; or (4) the local minimum wage to which the covered employee is entitled.

Employers cannot require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave, except in cases of exclusion pay under the California Division of Occupational Safety and Health COVID-19 Emergency Temporary Standards.

Further, there are posting requirements with regard to SB95, which can be found at: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf. For those employees who work off-site, the foregoing notice should be supplied to them remotely.

Like prior paid leave laws in California, the amount of leave available must be set forth on employees’ paystubs. SB95 expires on September 30, 2021.

About Becker LLC: Becker LLC is a premiere mid-market firm recognized as a leader in the Staffing Industry. With offices in New York, California, Pennsylvania, and New Jersey, the firm provides forward thinking, mission-critical advice to staffing industry entrepreneurs and management on high stakes, complex legal matters as well as day-to-day matters and long-term plans. The firm are proud to be members of the following Staffing Associations: TechServe Alliance, SIA, ASA, ASG, TempNet, CSP, MSA, NJSA, NYSA and serves as general counsel to the Mid Atlantic Staffing Association.

Submitted by Assurance

Group Captives for Staffing

Are you tired of unpredictable renewals, insurance carrier declinations of placements restricting your growth, instability in rates, and waiting for your experience modification to catch up with your safety and risk management practices? Imagine having pricing expectations four months out from your renewal date, more flexibility in making placements and an insurance cost specific to your loss performance.

Does this sound too good to be true? Think again. Group captives make this all possible and are a hot commodity in the industry because of it.

Here are six advantages of group captives for staffing companies:

• Predictable pricing – your insurance cost is almost entirely based on your individual performance which allows for early forecasting. A composite rate can protect you from unanticipated premium difference at audit due to reclassifications.
• Ownership of an insurance program along with like-minded, best in class companies; whereas in the standard market you’re subject to rate increases based on how the industry as a whole (good or bad) has performed, not to mention state mandated rate increases.
• Entitlement to the return of underwriting profits instead of the insurance carrier retaining the proceeds.
• Generation of investment income on loss fund dollars. Even if you perform at expected losses, claims are not paid out immediately but over a period of several years. While loss fund dollars are on hand prior to payment, investment income is earned.
• Authorization over program decisions – TPAs, safety services, discretionary use of loss control dollars, etc.
• A broader underwriting appetite allows you to expand the nature of your placements giving you more growth opportunities.

While there is no barrier to exit a captive after the first policy term, a captive is ideally a long-term solution. Being such, consideration should be given to the following:

• Collateral is required whether posted via a letter of credit or cash. You do earn investment dollars on cash collateral. You’ll need to analyze the opportunity cost of tying up cash or borrowing capacity.
• If you exceed your expected loss funds dollars, then you may be in an assessment position as a captive is a loss sensitive program. Carefully review the program maximum.
• Group loss sharing is a captive requirement although what comes along with this is individual protection on shock losses.

If you’re interested in a program and partnership that can provide visibility into your workers’ compensation costs and establish a long-term solution, contact a member of the ‘A’ Team to discuss whether a captive solution is right for you.

Submitted by Spark Hire

The demand for external talent sourcing is at an all-time high, but with such a large influx of quality talent, it can feel difficult to manage your candidates and clients effectively. Now, more than ever before, staffing professionals rely on innovative technology to manage the workload and stay ahead of the game.

A dedicated video interview platform has the power to boost placements and increase your success as a staffing pro. However, knowing how best to leverage the platform isn’t always so obvious.

To give you a solid start, we’ve laid out exactly how video interview platforms actively boost candidate placements:

Gain early insight into candidates

The earlier you’re able to provide clients with an in-depth snapshot of your candidate, the better. Traditional candidate profiles and CVs no longer provide adequate insight beyond their basic skills and experience, and frankly, don’t excite your client.

Video interviews showcase a candidates’ personality beyond their resume and allow clients a chance to evaluate how they might fit within the company culture or among the team. Not to mention, one-way video interviews help shed light on the most desirable skills your clients are looking for.

For example, with one-way video interviews, you can choose questions based on a specific requisition to highlight a candidates’ personality, soft skills, and unique experiences. As a result, clients gain advanced insights earlier on in the placement process, and it boosts their investment in the prospective candidates. This equips them to make the best decisions about who to advance to the next stages of the interview process.

Enhance the candidate experience

Now more than ever, staffing pros focus on enhancing the candidate experience throughout every stage of the recruitment process. To do this effectively, look for ways to curate a more personalized experience while keeping candidates excited about open roles. Video interviews are a great way to stand out from the competition and establish a more personal connection.

To ensure a candidate remains excited and engaged, start leveraging a video interviewing platform to promote your client’s brand. This technology comes equipped with customizable branding features to help make a lasting impression. You can upload a clients’ logo, select their brand’s unique colors, add photos, and record or embed company videos to appear before and after candidates complete their interviews. Use these videos to personally welcome candidates to the process, get them excited about the role, and thank them for their time while providing information on next steps.

These personal touches help to enhance the candidate experience and promote their investment earlier on in the recruitment process.

Expedite a transparent screening process

The shift to remote recruitment has resulted in a slower screening process for the majority of agencies. Without the proper technology, recruiters are left bogged down with an overwhelming talent pool to filter through. Despite the influx, 60% of candidates now expect quicker feedback on their application status.

On top of a faster screening process, both candidates and clients want frequent and transparent communication. However, expediting the communication process is never cut-and-dry. There are many factors impacting candidate details you send to clients and information you receive back.

With a dedicated video interview platform, candidates and clients have some control over their experience while streamlining the way you stay up-to-date on the status of the screening process.

Candidates record video interviews on their own time and after your review, clients can offer their impressions and feedback at their convenience from anywhere in the world. You’ll receive notifications when each step is completed, from the candidate interview to client reviews. This quick feedback helps you know when to follow up with a client or candidate on next steps, resulting in a more transparent and efficient process.

Improve team collaboration

Seamless team collaboration is critical for making a successful and long-lasting placement. However, working remotely can make team collaboration feel more difficult than ever to coordinate. Between impossible schedule syncs and time-strapped hiring managers, more and more recruiters are discovering the benefit of video interviews to promote open and effective communication amongst your key decision-makers.

Being able to share recorded candidate videos with the entire hiring team provides your client the opportunity to collaborate at their convenience. The team is free to view, comment, and rate candidates in their own time. You can then view your client’s interview evaluations for specific roles and track feedback about each candidate, resulting in faster follow-ups with prospective candidates. Managers can also share video interviews with other departments within the company to evaluate culture fit and skill set.

Secure higher retention rates

The key to a successful retention rate hinges on how you interact with your candidates and clients. The candidate and client experience are crucial.

Video interviews create a positive chain reaction that increases clients’ retention rates from the hiring process through employment. Additionally, enhancing the candidate experience solidifies their investment in the new role. When their expectations are met during the interview phase, they start their career on a more positive note. As a result, clients and candidates are more satisfied with their placements for the long-haul.

Clients that see increased retention thanks to your placements are almost guaranteed to keep coming back for more. As their trust in your ability to provide the best quality hires increases, word will get out to their network, likely earning you new clients. Similarly, former candidates who are satisfied in their roles are more likely to refer you to other top talent creating opportunities for valuable placements in the future.

About the Author

Josh Tolan is the Founder and CEO of Spark Hire, the world's leading video interviewing platform with more than 6,000 customers in over 100 countries. Since Spark Hire's launch, Josh has become an influential member of the HR and recruiting community. He shares his knowledge and thought leadership on recruiting as a contributor on a wide range of outlets including Mashable, FastCompany, The Huffington Post, ERE.net, Recruiter.com, TechCrunch, and more.

Submitted by Peckar & Abramson, P.C.

The H-1B nonimmigrant visa program, which allows employers to bring in foreign professionals to work in “specialty occupations,” has been an important tool of the staffing industry for many years. As winter thaws, our thoughts turn to our spring gardens, but staffing companies know that spring also means H-1B cap season is around the corner. U.S. Citizenship and Immigration Services (“USCIS”) rolled out its new H-1B registration system last year, and for the most part it has been regarded as a positive change, reducing costs for employers not selected in the lottery. With a year of experience under the new registration system, and after a year where many changes were proposed to the H-1B visa program, what can staffing industry employers expect for the fiscal year 2022 (“FY2022”) H-1B cap season?

The Basics

The cost of each H-1B registration remains $10. The registration period will open at noon (EST) on March 9, 2021, and remain open until noon (EST) on March 25, 2021 (note: this is a change from last year when the registration period ran from March 1st until March 20th). Employers seeking to create new myUSCIS accounts for registration purposes can do so beginning on March 2, 2021, at noon (EST). If your organization has more than one legal entity (meaning, a company with a different employer identification number) that desires to sponsor an H-1B employee, each entity will need to set up a myUSCIS employer account. If you previously set up an employer account for the FY2021 registration period, you may use that existing account again this year. However, if your H-1B “point person” has changed (i.e., the authorized representative who typically signs your work visa petitions), then the new representative will need to set up their own myUSCIS account, since USCIS does not allow sharing of individual’s registration accounts.

USCIS intends to run the lottery after the registration period has closed and then notify selected registrants by March 31, 2021. The first phase of the lottery will pick from a pool containing all registrations, while the second will be limited to only individuals that qualify for the advance degree cap. April 1, 2021, is the first date on which selected registrants can file their Petition for Nonimmigrant Worker, Form I-129, with USCIS. Selected employers will have at least 90 days to submit the H-1B petition to USCIS. It is unclear, at this time, whether USCIS will allow Premium Processing for cap-subject FY2022 petitions.

The information needed to complete each registration remains the same:

• The employee’s full name, as it appears on their passport, and gender;
• The employee’s passport number and country of citizenship;
• The employee’s date/country of birth; and
• Confirmation regarding whether the beneficiary is eligible for the U.S. advanced degree cap (note: a beneficiary is eligible for the advanced degree cap if she will obtain the degree by the time her H-1B petition is filed with USCIS).

The sponsoring employer may only submit one registration for the same beneficiary. Duplicate registrations will be cancelled by USCIS and cannot be re-filed. Multiple related entities can each submit a single registration for a specific beneficiary, but only if each entity can show a legitimate business need. These potential duplicates will be closely scrutinized by USCIS before the cap lottery is run.

Is the lottery still random?

Yes. On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule seeking to replace the current system, which randomly selects H-1B registrations for the lottery, with a prioritization system that would favor petitioners offering higher wages to their employee based on the Occupational Employment Statistics (“OEC”) four-level wage system. This was slated to go into effect on March 9, 2021, just in time for the FY2022 cap season. However, on February 4, 2021, DHS posted the final rule for public inspection, delaying its effective date for cap-subject H-1B petitions until December 31, 2021. The practical effect is that FY2022’s cap season will be unaffected, and the lottery will be chosen through random selection.

Will prevailing wages be significantly higher than last year?

No. On October 8, 2020, the Department of Labor (“DOL”) issued an interim final regulation that significantly raised the prevailing wage minimums for foreign professional workers, including H-1B employees. On December 14, 2020, the U.S. District Court for the District of Columbia struck down the rule because, among other reasons, the DOL bypassed the mandated public notice and comment period. On January 14, 2021, a new version of this rule was published, which still contains significant increases to the prevailing wage levels, but nothing close to what was attempted in late 2020. This new rule, however, is not slated to go into effect until July 1, 2021, so it should not affect cap-subject FY2022 petitions filed within the initial 90-day window.

Has the definition of a specialty occupation changed?

No. On October 8, 2020, DHS published a rule in the Federal Register seeking to tighten certain H-1B definitions and regulations. For instance, employers would no longer be permitted to argue that a bachelor’s degree was common to the industry and would have, instead, had to show it was a minimum requirement for entry into parallel positions at similar organizations. Critical for staffing companies, the proposed rule sought to add definitions to distinguish the “worksite” from a “third-party worksite,” the latter being a place “other than the beneficiary’s residence in the United States” that is not owned, leased or operated by the petitioning employer. The rule also sought to define whether an employer-employee relationship exists between the petitioner and a beneficiary working at a third-party worksite, and to limit H-1B employment at third-party worksites to a maximum of one year. This rule was struck down by the U.S. District Court for the Northern District of California on December 1, 2020, along with the prior version of the increased prevailing wage rule. These new definitions and requirements will, therefore, not affect the FY2022 H-1B cap season.

In Conclusion

The H-1B registration period will be open from March 9th until March 25th of 2021. As H-1B visas registered are expected to greatly exceed the allotted 85,000 available, employers seeking to bring in foreign workers for the FY2022 cycle will need to have their H-1Bs registered within that window. Late registrations will not be allowed. Employers should be in contact with immigration counsel as soon as possible to make sure all accounts are set up and that a plan is in place for the registration period.

Submitted by Becker LLC

As staffing firms are familiar with by now, as a condition of entering the workplace, staffing firms and their clients may require COVID-19 testing of employees and temporary workers. However, until recently, the CDC had not fully developed and laid out what consents and disclosures were required to be provided to employees and temporary workers before a business could institute such a program. Well, now the CDC has.

The below outlines what the CDC expects of such testing programs. Therefore, when a client requires COVID-19 testing, staffing firms, as the employer of record, will want to ensure that both the staffing firm and the client are complying with the CDC guidance, especially if the client is the one conducting the testing. Ensuring a client’s compliance may require an amendment to the master services agreement as well as visual oversight.

According to the CDC, all testing should only be conducted with an employee’s or temporary worker’s informed consent which must consist of (1) disclosure, (2) understanding, and (3) free choice. The CDC recommends the following steps be taken when creating a testing program:

• Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
• Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
• Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
• Provide information about the testing program in the employee’s preferred language using nontechnical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
• Encourage supervisors and co-workers to avoid pressuring employees to participate in testing. 
• Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

Further, the guidance states disclosures should include those addressed in the FDA’s emergency use authorization patient fact sheet, including:

• The manufacturer and name of the test.
• The test’s purpose.
• The type of test.
• How the test will be performed.
• Known and potential risks of harm, discomforts, and benefits of the test.
• What it means to have a positive or negative test result, including:
• • Test reliability and limitations
  • Public health guidance to isolate or quarantine at home, if applicable

Finally, the CDC lists a host of questions that employers should be ready to answer, including, but not limited to:

• Why is the employer offering to test employees?
• Will the employer pay for the employee’s time and travel?
• Are there any available accommodations or alternatives for an employee who declines to take the test?
• Who pays for the test?
• Who will be administering the test and what are their qualifications?
• When will the results be provided to employees, and in what confidential manner?
• Who will interpret the test and what are their qualifications?
• What is the test provider’s obligation to report a positive result to the public health authority.
• What personal information does the employee need to provide (e.g., name, date of birth) to the test provider?
• How will personal information be kept confidential and secure (i.e., restricted from unauthorized access or disclosure)?
• Who to contact to explain an employee’s rights?
• Who to contact if assistance is needed (e.g., language translation or transportation to and from the testing site)?

Based on the above, it is imperative that all staffing firms who decide to move forward with COVID-19 testing have a well-documented and prepared testing plan; and in the case of staffing firm clients, staffing firms must ensure the applicable client’s plan adheres to the guidance as well. While the CDC guidance is helpful in developing such a plan, it is highly recommended that all plans be run by your legal counsel prior to implementation

About Becker LLC: Becker LLC is a premiere mid-market firm recognized as a leader in the staffing industry. With offices in New York, California, Pennsylvania, and New Jersey, the firm provides forward thinking, mission-critical advice to staffing industry entrepreneurs and management on high stakes, complex legal matters as well as day-to-day matters and long-term plans. The firm are proud to be members of the following Staffing Associations: SIA, ASA, ASG, TempNet, CSP, MSA, NJSA, NYSA and serves as general counsel to the Mid Atlantic Staffing Association.

Submitted by Peapack Private Investment Banking

Our team is pleased to present its 4Q20 quarterly human capital solutions industry update from our Senior Advisor, Jim Janesky, who oversees client coverage and leads the vertical.

Through this industry update, we will share with you our impressions on the market, track the leading macroeconomic indicators, report relevant transactions, public market valuations and highlight current trends. We also encourage you to set up a meet and greet with Jim Janesky and obtain a complimentary evaluation of your business.

Click here to download the report.

Submitted by Two River Benefits

The Equal Employment Opportunity Commission (EEOC) recently added nine new answers to frequently asked questions (FAQs) to its existing guidance on how employers should comply with the Americans with Disabilities Act (ADA) and other fair employment laws while also observing all applicable emergency workplace safety guidelines during the coronavirus (COVID-19) pandemic.

Guidance for Employers

The new FAQs address mandatory workplace vaccination programs and the restrictions that federal fair employment laws place on them. In general, employers may require employees to receive COVID-19 vaccinations as long as they provide reasonable accommodations for employees who refuse to take the vaccine for medical or religious reasons.

The EEOC’s new FAQs generally clarify, among other things, that:

• Employers may require employees to receive COVID-19 vaccinations;
• Employers that require vaccinations may need to provide accommodations, or show that an unvaccinated employee would pose a direct threat;
• Vaccination-related questions from employers must be job-related and consistent with business necessity; and
• Any medical information obtained in the course of a vaccination program must be kept confidential.

Employers with 15 or more employees should become familiar with and follow the guidance provided in all of the EEOC’s FAQs about ADA compliance, and employers should ensure that they comply with state and local anti-discrimination laws as well.

While the COVID-19 vaccine is not yet available to the general public, employers should begin to plan for when there is broader access.

Submitted by Becker LLC

Healthcare Staffing companies, in particular, routinely provide base pay as well as per diem expenses  (i.e. food and lodging) as part of their total compensation package when recruiting and hiring travel nurses. In fact, for many travel nurses, the payment of the per diem expenses is part of the allure, as per diem payments are typically tax-free. Likewise, employers may benefit from such an arrangement (if done within the constraints of the law) as it permits payment to travel nurses that may otherwise be taxable and subject to various wage and hour restrictions, including, overtime.

However, in the recent 9th Circuit decision of Clarke v. AMN Services LLC, the Court, in reversing a lower court’s decision in favor of the employer, stated not so fast, the per diem payments there should have been classified as compensation and not tax-free benefits because the payments were compensation for work rather than as reimbursement for expenses incurred by the travel clinicians. The Court, in reaching its decision, relied on, amongst other guidance and case law, 29 C.F.R. §778.224(a), which states that payments excludable from wages “do not depend on the hours worked, services rendered . . . or other criteria that depend on the quality or quantity of the employee’s work.”

The employer in Clarke v. AMN Services LLC, had two different policies regarding its per diems: (1) pre-2014: “the per diem payments were prorated based on hours missed: for each hour a clinician failed to work, [the employer] would deduct $18 from the weekly per diem benefits”; and (2) post-2014: generally, “if a clinician contracted to work three shifts per week misses a shift, “the per diem allowance . . .advanced to her the week before [is] adjusted by one-third.”

While the Court noted, that “[r]eimbursing traveling clinicians for seven days of expenses even though most clinicians only work three days a week is justifiable because the clinicians are scheduled to work away from home for a prolonged period and are not expected to travel back and forth to their home base each week”, the Court found that the employer’s policy of taking “pro rata deductions from its per diem payments [were] unconnected to whether the employee remains away from home incurring expenses for [the employer’s] benefit. Instead, the deductions connect the amount paid to the hours worked while still away from home, thereby functioning as work compensation rather than expense reimbursement.” Thus, the Court reclassified the per diem payments as wages, subjecting such payments to taxes and increases to the applicable travel clinicians’ overtime wages.

While, this case was based on a specific set of facts, the Court, undoubtedly, dealt a significant blow to per diem payments and the Healthcare Staffing Industry. All Healthcare Staffing companies should immediately review and update their contracts and policies in accordance with this case.

About Becker LLC: Becker LLC is a premiere mid-market firm recognized as a leader in the staffing industry. With offices in New York, California, Pennsylvania, and New Jersey, the firm provides forward thinking, mission-critical advice to staffing industry entrepreneurs and management on high stakes, complex legal matters as well as day-to-day matters and long-term plans. The firm are proud to be members of the following Staffing Associations: SIA, ASA, ASG, TempNet, CSP, MSA, NJSA, NYSA and serves as general counsel to the Mid Atlantic Staffing Association.